This is part two of Tomahawk Nation's examination of the NCAA Committee on Infractions' reply to Florida State's appeal.  In the first installment, we looked at some background information, the standard of review, and the first three factors the committee considers when levying a vacation of wins penalty.  If you haven't read the first part, do it first, as this piece won't make any sense without the other.

Throughout this whole thing, you must remember the standard of review:  Abuse of Discretion.

What does that mean?   Typically, it is a failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.

Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge.

Abuse of Discretion is a very difficult standard to overcome in an appellate proceeding.  FSU has to show that the NCAA's decision was clearly against logic and the evidence.

The Burden is on FSU!  The NCAA COI can basically sit back and do nothing and unless FSU conclusively proves its case, the IAC will uphold the COI's sanctions.  

We continue looking at the factors today, starting with:

Factor 4:  "Comparison of the Penalty of Penalties Imposed

 There's not much of a contradiction here.  FSU says that it will not generally apply-- not that it never applies.  The NCAA cites three cases within the past year where it applied the penalty without intentional misconduct by a coach.  Nobody has ever alleged that Bowden engaged in "intentional misconduct", but the rule states that it is not required.  There is a duty to uphold a culture of compliance,  The penalty is on the university, and it just so happens that Bowden was the coach of record when he used ineligible players.  

Note:  see how dumb T.K. was to drag the NCAA into what was a purely academic issue?  Over 500 students took this course and many more than the athletes cheated.  Yet for some unknown reason. T.K. decided that he wanted greater control over athletics (could it be that this coincided with Dave Hart not wanting Jeff Bowden as offensive coordinator, opposing the move, and helping to foster Jeff's ouster?  I don't know) and he drug the NCAA into an athletics issue.  

So the NCAA cites three cases where they did what FSU says can't be done and all three happened within the last year.  

Next, we come to two cases you have probably heard about:  Oklahoma and Georgia Tech:  

 Let's put this in a picture:

This is a hungry dog.  He should not eat brown paper bags.  He should not eat a brown boot.  But what about Brown dog food?  Should dogs not eat brown things?  Common factors are cool but they are not as important as the relevant factors.  The committee first discusses Georgia Tech's case:

 That's crucially important language because it is the the Appeals council (not the Committee on Infractions) who the Committee On Infractions (COI) cites.  The IAC is the group who will decide FSU's appeal (see part one for an explanation of why this isn't a final decision, but rather a response from an adversarial party).

I mentioned yesterday that the NCAA keeps the factors fluid because each situation is different.  FSU clearly falls within 3 of those 4 possible factors for consideration (academic fraud, serious intentional violations, and a great number of violations).    They continued:

 Not much to say here, this is just a clearer list of things to consider when assessing a vacation of wins penalty in light of the Georgia Tech case.

So with those clearer factors, the COI discusses some recent cases in which it imposed the vacation of wins penalty.  This does get a bit repetitive but they are trying to build their case (even though the burden is on FSU, not the COI):

 Here the NCAA COI is saying "FSU, we've done this three times in the last year, with less severe cases than yours, and none involved the coach element."  Next comes the Oklahoma case...

 This was the case of Oklahoma QB (top QB in the nation and projected starter) Rhett Bomar and some lineman (also a starter) taking money from a car dealership while performing no work.  The wife of a Texas A&M Booster turned them in.  Oklahoma only met two factors, FSU meets at least 5 and probably 6.  Oklahoma kicked their two players off the team while FSU only suspended theirs.  I think you get the picture.    The COIalso addresses an Arkansas case with which I am not as familiar...

 It seems to me that outside of the "double repeat violator" status, our case was much more similar to the Arkansas' case in terms of factors met than it was to the Tech case or the Oklahoma case.

The COI concludes the "Comparison of Penalty Imposed" section by essentially comparing FSU to Mary Lou Retton:

FSU:  Hey!  Look at us!  We are perfect at committing academic fraud and letting the entire world know!

The appeal does get a bit nasty here as they call it an "easy decision", but they are right.  I mean, "every factor"??  This case was easy.  FSU served it up on a silver platter.  Ken Griffey hits pretty well off a tee too.

I'll now turn to the next factor discussed on appeal:  

Institutional Cooperation in the Investigation

 This is just another restatement of the Committee's need for flexibility in decision making.  They do lay it our pretty well here.

More discussion of the differences between the Oklahoma case and our case, with emphasis on Institutional Cooperation:

 The COI seems to have dotted their I's and crossed their T's much better in this case than they did in the past.  Maybe that is because FSU invited them to nail the university?  

Next, they discuss the Ole Miss case from which the original 7-factor test arose:

 Remember, this is the IAC's language.  I pay special attention to anything the IAC has said because they are supposed to be neutral in this process (like an appellate judge).  As repeatedly stated over and over again, no single factor controls.  All the factors will be mixed together.  

 This is more "you really screwed up and did try to cure some of your mistakes but your actions were so egregious that we have to punish you" language.  Here's more:

 The COI does a great job of citing the IAC's language which is the language to cite if it's available.  Some is available for FSU, but the COI has a truckload of IAC language to use.  FSU has to be careful because some cases have helpful language but citing to them gives the COI an opportunity to contract the facts (FSU meeting every possible factor, the other case not), etc.

Now the COI gets quite mad:  

 They seem to really be focusing on this idea that they have the power to consider all the factors in an aggregate fashion.  

They conclude the participation issue with this:  

 The COI is smart here in urging the IAC to consider what they could have done in order to properly frame the penalties they did assess.  

Moving on:

Factor 6: Impact of Penalties on Innocent Student Athletes and Coaches

 I want to make sure to note that the guys handling the appeal for FSU aren't dumb.  They are being paid to do a job and are doing the best they can.  It's not their fault that TK gave the NCAA a gun on the way to a knife fight.  FSU's attorney's obviously aren't going to cite language that crushes their own argument.  The important thing to note is the weakness of FSU's case.

The COI's footnote discusses the knowledge that some innocent parties will always be impacted by these penalties, but contends that they are very fair and that they dissuade programs from acting this way in the future (cheating, not turning themselves in, haha).  

The other thing to note is that these violations weren't separate from the program.  Bowden or anyone else can hardly claim that they aren't culpable.  They are part of the program from which the cheating occurred.  As soon as T.K. Wetherell blew up an academic issue into an NCAA issue, it became Bowden'sproblem, much to the chagrin of T.K. and everyone else involved with FSU.  

Here's more of FSU dodging the issue and the spirit of the rule:

 Again, if FSU had better cards they would play them.  Their case is just weak.  

FSU tries to make the case that the coach should get to count the wins even though he cheated by using ineligible players (who were eligible at the time of cheating, by rule, because FSU was one the one perpetrating the cheating...):    

The NCAA concludes this 6th factor with this:

 It's important to note that they don't discuss coach Bowden.  It doesn't matter who the coach is.  The penalties are laid out, and in a team sport, you win as a team and lose as a team.  

Factor 7:  NCAA Policies Regarding Fairness In, and Equitable Resolution of, Infractions Cases

 Since they mention the hearing, I will put this here:  

Rumors are that allegedly a lot of stuff went down at the hearing.  Allegedly, "someone" for FSU offered to "endow a scholarship for $1M to whatever cause the NCAA wanted" and allegedly, someone on the Committee (COI) told The Knowledgeable FSU speaker that "the committee was not in the practice of accepting bribes."  There are also all sorts of rumors that allegedly FSU went over the committee chair's head when negotiating the self-imposed penalties, allegedly was successful, and allegedly this is rumored to have hurt FSU because the Committee was offended that FSU allegedly wasn't playing by the rules.  Now, this is all internet rumor and I am not representing it as fact.  The voracity of these rumors is for you to decide as a reader.  Everyone will agree, however, that it's not good to act in a rogue cowboy manner and usurp the authority of a board comprised of academics who consider themselves to be above moral reproach.

It's also rumored that T.K. allegedly wanted to embarrass Dave Hart during the Alabama game (fall 2007).  T.K. stated that the first order of business was to seize control of the "rogue athletic department" and make sure they didn't "circle the wagons"  Our own Frank D. reminds us that Hart had a 10 year contract from 1999 to 2009.  TK initially told Hart his contract would not be renewed when it expired, but then TK did not want to wait until the end of 2009 to get rid of Hart, so he basically bought out Hart's contract for $475,000 plus a annuity which brought the total to well over $500K.  Hart and his wife are Bama grads.  What better place to sling mud on someone than during a game against their Alma Mater?  Hart would not kiss up to Bowden or T.K.  Hart saw the unprofessionalism with which Bowden ran the team and he knew it was sub-standard.  How did he know?  Hard knew it because he could see the way other coaches of successful FSU sports programs ran their operations.  Again, that is all internet rumor and is all alleged.  I do not represent that as fact, but am simply relaying a rumor that outlines why T.K. allegedly wanted to slam Dave Hart and at the same time seize greater control of the athletic department from which he could allegedly help out his friend Bobby Bowden.  

Okay, crazy conspiracy theories aside, FSU contends that their punishment was enough and the NCAA contends that the punishment was a quick fix to assure that the athletes could return to the field in the most expedient way possible.  FSU then tries to claim that the main focus of the suspensions and failing the kids for the course that they cheated in was to punish them.  The NCAA throws FSU's own hearing transcript back in their face:  

As a friend of ours from Texas put it:  Although I disagree with forcing a university to forfeit games after the fact if it only later learns that a player(s) cheated on their own, I do agree with holding the institution accountable for what it's employees knew and what they did (especially here when three separate employees were involved). The institution should have been considered to have knowledge of their ineligibility when it's employees became aware. The vacation of wins is Florida State's penalty - not a Bobby Bowden penalty (though, in this case, he happens to be hurt worse just because of where he is in his career), and Florida State is comprised of employees. "Florida State" received notice of the cheating when 3 of their employees learned of(actually actively engaged in) cheating. As of that point, no problem in holding FSU by playing academically ineligible players that FSU employees knew should have been academically ineligible. It's disingenuous to say that FSU was unaware of it ... FSU isn't a separate entity that can be told or learn of things. It receives notice when persons in its employ learn of things (or perpetrate the acts of which they are alleged to have known)!

I can't decide if FSU was really stupid when they agreed to the 3.5 game suspension for reinstatement, or if they actually believe the NCAA was saying "suspend them 3.5 games, fail them for the course, and everything if fine for ever and ever."  I do have my suspicions...

 Is it just me, or is FSU's argument akin to a bank robber who gives all the money back thinking that he will not face any jail time?  Would the bank robber have given the money back had he not been caught?  How long would Brenda Monk kept on "making sure the kids stay eligible?"

 This is of course the new policy the NCAA discussed in one of the previous sections, which arose in order to clarify the factors.  I again think this reply is a bit unprofessional (and so do some of my law school friends, for whatever that is worth), and the committee probably didn't need to remind us again that FSU amazingly hit all the aggravating factors and was unprecedented in its violations.   

I am not familiar with the procedure for amending bylaws, so I won't comment on that second paragraph other than to say that it really slams FSU and makes me wonder why we are pursuing this appeal?  I keep coming back to this issue of T.K.'s guilt for launching the massive and unnecessary investigation and thus opening a huge Pandora's box that ended up hurting his dear friend and former coach Bobby Bowden.  

They conclude the 7th factor:

What I takeaway from the 7th factor is that FSU tried to have their cake (get the players back very quickly through some hastily thrown together suspension/ vacation of the class remedy) and eat it too (not have any punishment for the actual act).

Conclusion

 FSU cheated, used ineligible athletes who were ineligible at the time of the cheating, can't say that they didn't know because in fact their own employees enabled and acted in the cheating, and the entire program will pay the price, including Bowden, because he was the head coach of record who used players who the university knew were ineligible at the time of participation.  I don't think the mention that they went light on scholarship losses is foreshadowing.  I'm told that even though the COI reserves the right to re-open the case and assess further penalties after appeal, they are very unlikely to do so.  

I still think this appeal is a huge waste of time and money.  It puts the individual above the university.  It has been poorly managed and is a public relations nightmare with consequences (including on recruiting and reputation) that will hurt the university long after T.K. Wetherell and Bobby Bowden are gone.  I don't think there is any way that FSUmet their burden of proof with this appeal and I do not think I could do a better job.  You are only as good as the facts you're given, and the circumstances that made up this case are extremely tough to spin.

If only T.K. and Bowden realized that leaving the university on solid footing would be a much greater testament to their legacy than an embarrassing public fight over a likely unattainable individual record.

[Editor's Note:  For all our regular readers who do not care about this stuff, my apologies.  I didn't want to cover this garbage and hoped that it would just go away.  After a while, however, it became apparent that people were not reading or were not understanding the COI's response to FSU's appeal to the IAC.  I just tried to provide some clarification on the matter and help Florida State fans to understand FSU's appeal.  Please remember that no final decision has been made and that this document we dissected over the last two days is written by the NCAA COI.  It is not the COI, but rather the IAC that will render the final decision.]

GO NOLES!!

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